Archives for December 2013

In most civil litigation, a process takes place by which both sides learn about the facts, opinions and legal positions of each other. This discovery process takes place in state and federal court normally after a complaint and a response to it have been filed with the court.

Discovery rules are fairly broad, because the idea is to get as many facts out in the open as possible, because cases are decided on the facts and applicable law. Once the facts are available, they also give the parties a good handle on the case so they can decide if they want to settle, and if so, on what terms.

In order for a plaintiff to bring a case, there must be some kind of harm or damages, either physically, mentally and/or financially. When a plaintiff makes a damages claim, it opens up questions the defendant can ask. If there are claims for medical or psychological harm, the defendant may probe into a plaintiff’s medical and psychological history to try to verify the claims or come up with an alternate cause. If there’s a claim of lost income, your financial history will be at issue. There are limits to discovery, and we zealously represent our clients to make sure defendants don’t go beyond those limits, but the reality is the filing a lawsuit results in a degree of lost privacy.

Defendants or their insurance companies may also hire private investigators to follow plaintiffs, hoping to find evidence they are not as injured as they claim. That also includes viewing postings on social media. If a plaintiff claims to be limited to being homebound due to an injury, but is video recorded riding a bicycle down his street or posts pictures on Facebook of himself hiking, that plaintiff’s case will probably come to a premature end.

Also due to discovery, plaintiffs will lose some time. Our attorneys and staff will go into great detail asking about the circumstances of an accident and the resulting damages. That better prepares us for the case, helps us decide which path it should take and is also used to answer questions posed by defendants during discovery.

More time will be needed to prepare for, and testify at, a deposition. A deposition is the questioning of a party or witness, under oath, by attorneys for both sides. A court reporter is present to make sure there’s an accurate record of the testimony and it may also be video recorded. We will prepare you for the deposition so you can respond as accurately and as honestly as possible. We will also share with you our experiences with opposing counsel so you’ll have an idea of that attorney’s approach and style so there should be no surprises.

The discovery process is a double edged sword. There are downsides, like the time, energy and loss of privacy it takes to respond to the defendant’s requests. But there’s a greater upside, because it’s an opportunity for the plaintiff to tell his or her story. We also ask defendants questions, too, and get information and documents from them as well. In the end, because of the discovery process, in most cases, the parties have to put their cards on the table and whomever has best hand will win.